Weekly Notes: legal news from ICLR – 17 June 2016

Looking back on a turbulent week in law and politics, we seem to have a lot about professional (and unprofessional) conduct, as well as crime and some very poor decision-making. Fools have rushed in where angels would have feared, quite rightly, to tread.

EU Referendum

Broken Brexit

In a campaign dominated by Hate v Fear, sadly Love does not seem an option.

At the end of a truly turbulent week, saner voices are questioning the very wisdom of holding the EU referendum in the first place. Like the broken record of promises over replacement of the Human Rights Act with a British Bill of Rights, the EU Referendum has long been demanded by a few shrill voices in both main parties, but particularly by a swelling number of so-called Tory rebels. (To call them “rebels” makes them sound a bit like ageing punks, struggling into their stovepipe jeans and desperately wisping their balding barnets into some semblance of a spiky hairdo.) They are mostly on the right of the party and most of them, while piously claiming to support human rights, seem to share a desire to curtail the scope of any meaningful remedy for their breach.

David Cameron, as Prime Minister, sought to lance the boil of Euro-sepsis by promising a once-and-for-all referendum. He must have assumed the remainers would easily win, and the voices of dissent would pipe down for the foreseeable future. But the lanced boil has exploded in his face, showering us all with pus. A wellspring of xenophobia and unfocussed political resentment seems to have burst forth.

It’s worth remembering that this is the third referendum Cameron has presided over since he came to power in 2010. The first, a condition of the coalition agreement with the Liberal Democrats, was over the voting system and resulted in a “no” to the proposal to change to a proportional representation system of voting. The second was about Scottish independence and also resulted in a “no”. This third one should perhaps be seen as the result of another condition of coalition government – the coalition between the centrist pro-EU one-nation Tories personified by Cameron himself, and the more right-wing isolationist and libertarian (or don’t-carian) Tories who dislike European consensus politics and continental harmonisation. Viewed thus, the holding of a referendum seems an unavoidable procedure, however risky. But it remains an act of appeasement, and not just of those on the right of his party, but also the barking parody account of them posed by UKIP.

This week has seen a slide from farce to tragedy.

By way of farce there came a flotilla of Leavers, led by Nigel Farage, Head of UKIP, sailing up the Thames in London being jeered by a counter-flotilla of Remainers, led by Bob Geldof. Farage later complained of the rude gestures made by the protesters (gestures facetiously described on Channel 4 News as the semaphore for “anchor”), saying it was disgusting to see “the rich making fun of the poor”. To regard Bob Geldof, a gob-mouthed working class hero, as somehow belonging to the ranks of wealth and privilege and Farage, a city trader and MEP, as one of the dispossessed seems topsy-turvy to say the least.

But it got worse.

On Thursday 16 June (Bloomsday in Ireland, but soon to become Doomsday in England) Farage unveiled his new anti-European poster, which depicted a long queue of refugees under the legend “Breaking Point – the EU has failed us all”. This excited a lot of comment, some of it comparing the design to propaganda images used by the Nazis in the 1930s, and others, as the Guardian has now reported, referring it to the police as an incitement to racial hatred.

But the worst was yet to come. Later that day came news that a man had shot the Labour MP Jo Cox outside her constituency surgery. The man was later arrested and has now been charged, so we should say no more about him, save that there has been a lot of speculation as to whether he acted in isolation and what his motivation was. The MP, first elected to Parliament in last year’s general election, later died of her wounds and was universally mourned. She had been an unswerving supporter of refugees and a champion of the victims of the Syrian civil war, in particular, but also a dedicated and much loved local MP.

These events prompted a lot of media commentary, as was to be expected, among the best of which was Alex Massie’s piece in The Spectator, A Day of Infamy(which over the course of the day was uploaded, taken down, and re-uploaded in an interestingly different version, unmentioning the names of certain politicians originally named – perhaps a response to some interim lawyering?)

Legal Professions

Sharp rise in inter-lawyer misconduct complaints

There has been a sharp rise in misconduct complaints by solicitors and other lawyers (such as barristers) against solicitors, according to City law firm RPC – but more worrying is the suggestion that many are being filed purely to gain a tactical advantage in an ever-tougher litigation market. According to RPC’s press release:

tensions between litigants are often exacerbated by the tactics commonly used in litigation, correspondence becoming heated and simple mistakes being made – none of which necessarily constitutes misconduct….

RPC says that complaints are often made at the request of clients who may misunderstand what constitutes misconduct, misconstrue the meaning or intention of the other party’s solicitor, or seek to exploit an opportunity for tactical advantage.The firm adds that it can be risky for clients to make unwarranted misconduct complaints against the other side’s lawyers: this may do nothing more than increase their own costs (and exposure to the other side’s costs), and it may even annoy the court.

Lawyers should be very cautious of giving a client the whiphand when it comes to alleging or not enforcing ethics. And they should be very wary indeed of blaming clients for misunderstandings, misconceptions and tactical devilry if they are theprofessional advisers of said clients.

The position is different, I dare say, when complaints are made by non-lawyers, particularly litigants in person, who often don’t understand the rules of courtly conduct, and assume a lawyer on the other side is “lying” when they are simply putting their own client’s case.

It would be helpful to be able to see the research done by RPC in full.

The Times on Thursday (£) seems to have concentrated on the idea of barristerial rudeness, as personified by the fictitious character of Rumpole of the Bailey – which rather misses the point of the story, because (a) Rumpole wasn’t rude so much as occasionally blunt or obtuse; (b) the story from RPC is really (mostly) about complaints about solicitors, and not about rudeness as such. But Rumpole at least makes a better stock image than, say, an inappropriate gavel…

Solicitors firm in social media fail

It’s not a gavel – it’s a sledgehammer.

And it’s not being used to crack a nut: rather, it represents the gloating overstatement of a series of tweets in which Mark Small, a founding partner of solicitors firm Baker Smalls, crowed about his firm’s victory when acting for a local authority in resisting the claims of parents for their children to be treated as having special educational needs. “Crikey, had a great ‘win’ last week which sent some parents into a storm!” one of them said. Another, relating to funding for Applied Behavioural Analysis that can help autistic children, read: “Great ABA Trib win this week … interesting to see how parents continue to persist with it. Funny thing is parents think they won ;)”.

When these resulted in widespread outrage, he responded by posting a photograph of a kitten laughing beneath the message:

‘Some great tweets received today from people who just see a one-sided argument… just shared them with my cat…’

Small wonder (so to speak) that Small later (perhaps after he had woken up to the commercial consequences of his actions) said he was “deeply, deeply sorry” for his comments, and conceded that, “from a publicity point of view, it is a disaster”. The firm deleted the posts and made a donation to charity.

Regrets, he may now have a few. Clients, he now has even fewer, many of the local authorities who had previously sent him business having cancelled their contracts, according to reports in the Guardian and elsewhere.

Unusual item in judicial baggage area

It’s not just solicitors (or indeed barristers) who get into trouble with professional conduct, judges can also fall foul of their reputations. Mr Justice Peter Smith has had a bad week and another bad judgment from the Court of Appeal. The whole saga has been adequately covered elsewhere (see for example this on the suesspiciousminds blog Lost suitcase Judge admonished by Court of Appeal (but not biased this time) including links to his prominent critics, Lord Pannick of Blackstone Chambers and Joshua Rozenberg QC).

So I would rather take this opportunity to say something nice.

It was Peter Smith J who, when the world famous legal costumiers Ede & Ravenscroft somehow failed to come up with the goods on reasonable terms, nobly and generously lent his robes to ICLR for the purposes of our training video on law reporting, Making Legal History (YouTube). And it was the present writer who, very briefly (at about 1:26), can be seen wearing them, in a real court (lent to us by the then Lord Chief Justice, Lord Judge). We had a real usher that day, and I think it is the only occasion anyone has ever said “All rise” upon my entering a room. Since it is a long time since anyone has been appointed directly from the reporters’ bench to the Bench, the moment is worth treasuring. But it required the full fig (sans wig) – the then newly introduced “Star Trek Dressing-gowns” as one judicial critic put it. One of my colleagues, who was then the reporter covering Peter Smith J’s court, happened to ask him and, being the maverick he may be, he was the one who came up with the goods. So I salute him for that. Indeed I think I probably still owe him lunch.

Interestingly, this latest judgment from the Court of Appeal (Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz[2016] EWCA Civ 556 at [68] – [74], which describes his conduct as “disgraceful” and “shows a deeply worrying and fundamental lack of understanding of the proper role of a judge” but, crucially, exonerates him of a charge of apparent bias) includes the following comment (which perhaps echoes the Rumpole point the Times was trying to make earler), at [71]:

From time to time, the patience of judges can be sorely tested by the behaviour of advocates. Sometimes, a judge will overreact and unwisely make an intemperate comment. But judges are expected to be true to their judicial oaths and not allow their feelings about an advocate to affect their determination of the case they are hearing. The informed and fair-minded observer is to be assumed to know this.

The Rumpole stories (written by a mild-mannered QC) are full of intemperate comments by judges. But there are other fictional precedents. In a book (by a judge, Henry Cecil) and later Boulting Bros film called Brothers in Law, the hapless young advocate, played in the film by Ian Carmichael, comes up before a fierce judge, played by John Le Mesurier, with whom he has earlier been partnered in a disastrous game of golf. You can see the judge simmering to the point of boiling over. It’s hilarious – and of course nothing like that could possibly happen now (because who has time to play golf with a judge? You’re more likely to rub up against them at a Cumberland Lodge training weekend).

Crime

CPS retreats from the edge over Cliff

This week the Criminal Prosecution Service decided not to pursue allegations of historical sexual abuse against Sir Cliff Richard, the pop singer, admitting that there was insufficient evidence. It seems there was no real evidence other than one or more uncorroborated allegations, though this did not stop the police mounting an extravagant dawn raid on Sir Cliff’s home while he was away on holiday, filmed by the BBC in full colour techniprejudice. (See Weekly Notes – 22 August 2014)

It now appears that his accuser had previously been arrested by the police for making blackmail threats against the singer, and that he has “mental health problems”. See The Independent.

Sir Cliff was never arrested or charged. It seems the whole charade was either a fishing expedition, intended to bring forth more and better allegations, or perhaps to entrap would-be blackmailers, or simply a distraction exercise to prevent the police and BBC getting too much stick over real offenders (such as Savile and other dodgy DJs) that they’d overlooked.

Indeed the Daily Mail is now going further in suggesting that one of Sir Cliff’s accusers is “one of Britain’s worst serial rapists” – yet remains protected by anonymity (presumably as an alleged victim; indeed, it seems he blamed the singer for turning him into a rapist) while the man he has accused does not. It’s hard not to regard this as an inequality of arms, or reputations.

Sir Cliff has now released a full statement reiterating his innocence and castigating the police for their gullibility and the BBC (who rather cheesily published the statement under “Entertainment and the Arts” rather than, say, Home News or Law) for their complicity. He points out that not being prosecuted is not the same as being declared innocent, and repeats the plea for the targets of unsubstantiated sex offence allegations to remain anonymous until the matter has been investigated and charges brought.

Other than in exceptional cases, people who are facing allegations should never be named publicly until charged.
I was named before I was even interviewed, and for me that was like being hung out like ‘live bait’.
It is obvious that such strategies simply increase the risk of attracting spurious claims which not only tie up police resources and waste public funds, but they forever tarnish the reputations of innocent people.
There have been numerous occasions in recent years where this has occurred, and I feel very strongly that no innocent person should be treated in this way.

Law (and injustice) from around the world

Pakistan

Continuing shame of “honour” killings

This week Human Rights Watch urged Pakistan to do more to curb the barbaric continuing practice of resorting to murder to protect family or community “honor”. Recent cases include girls being burned to death for marrying a man of her choice or helping others to do so, or simply refusing to marry the person foisted upon them. HRW explains:

Pakistani law allows the family of a murder victim to pardon the perpetrator. This practice is often used in cases of “honor” killings, where the victim and perpetrator frequently belong to the same family, in order to evade prosecution. The 2004 Criminal Law (Amendment) Act made “honor” killings a criminal offense, but the law remains poorly enforced. […]

In March, Pakistan’s senate passed an anti-honor killing bill, which is now pending National Assembly approval. Prime Minister Sharif should support the bill, which seeks to eliminate the option of murder committed in the name of “honor” to be “forgiven.” […]

Legislative changes are only a part of the solution. The Pakistani government should ensure that police impartially investigate “honor” killings without bowing to political or other pressure from local and religious leaders.

Syria

UN Panel says ISIS guilty of genocide

Islamic State forces have committed genocide and other war crimes in a continuing effort to exterminate the Yazidi religious minority in Syria and Iraq, according to UN investigators. They have reported this week on mass graves and mass killings of men and boys refusing to convert to Islam from their own Yazidi religious beliefs.

The investigators have produced 11 reports documenting wide-ranging crimes against humanity and war crimes committed by many parties to the five-year-old civil war in Syria, but in a report released on Thursday, they invoked the crime of genocide.

Ukraine

Journalists banned

Ukrainian authorities have placed sanctions on 17 Russian journalists and media personalities they accuse of stirring hatred in the country, according to the Guardian This presents a conundrum for those who support freedom of expression, yet understand Ukraine’s concerns over the use of Russian propaganda to threaten rights more generally.

“Ukraine is legitimately concerned about the effects of Russian propaganda, but cracking down on media freedom is a misguided, inappropriate response to whatever disagreement the Ukrainian government may have with Russia’s media coverage about Ukraine,” said Tanya Cooper, Europe and Central Asia researcher at Human Rights Watch. “Targeting journalists in this way inevitably encourages censorship.”

That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.